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U.S. District Court Judge Edward Chen in San Francisco ordered the Trump administration to halt its plans to terminate Temporary Protected Status (TPS) for individuals from El Salvador, Haiti, Nicaragua and Sudan. Employees with TPS from the affected four countries will temporarily maintain their right to work in the United States while a lawsuit in the U.S. District Court for the Northern District of California challenging the government's decision to end TPS is resolved.

Congress created the status in 1990 to offer foreign nationals temporary permission to live and work in the U.S., instead of being returned to countries that are deemed unsafe after natural disasters, armed conflict or other emergency situations. Salvadorans, for example—the largest group of TPS holders at approximately 200,000—were provided the provisional status and protected from deportation after earthquakes hit the country in 2001, and their protected status has been routinely renewed ever since. Similarly, 50,000 Haitians, the second largest group holding TPS, were granted protection after Haiti's 2010 earthquake. About 2,500 Nicaraguans have lived and worked in the U.S. with TPS since 1998.

The protection is granted for six to 18 months at a time, if conditions in a given country have been determined not to have improved enough. The Trump administration has taken a harder line on TPS than previous administrations, which tended to keep renewing it; the program is supposed to be temporary and was never intended to bestow long-term residency. Critics of the program argue that it has been incorrectly extended for years, and the U.S. Department of Homeland Security (DHS) has determined that conditions in the four countries named in the lawsuit have improved to the point that TPS for those countries' nationals is no longer necessary.

TPS and the employment authorization documents that accompany it are scheduled to expire as follows:

Nov. 2, 2018, for Sudan.

Jan. 5, 2019, for Nicaragua.

July 22, 2019, for Haiti.

Sept. 9, 2019, for El Salvador.

In addition, TPS for Nepal is set to be terminated on June 24, 2019, and for Honduras on Jan. 5, 2020. These two countries were not included in the court order because their terminations had not been announced at the time the lawsuit was filed.

The Trump administration has renewed TPS for nationals from Somalia, South Sudan, Syria and Yemen.

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Workforce Impact

Chen held that the immediate harm to the TPS beneficiaries far outweighed any immediate harm to the U.S., said Forrest G. Read IV, an attorney in the Raleigh, N.C., office of Jackson Lewis. "Indeed, the judge found that the U.S., rather than suffering harm from the continuation of TPS, actually might suffer economic harm due to the TPS terminations."

Neil Bradley, a senior vice president and chief policy officer for the U.S. Chamber of Commerce, argued that industries such as construction, food processing, hospitality and home health care services will be greatly affected if nationals from El Salvador, Haiti and Honduras lose work authorization.

"Terminating these designations would end the work authorization of many key employees … [and] adversely impact several key industries where TPS recipients make up a significant amount of the workforce," Bradley said.

According to the Center for Migration Studies, a New York City-based think tank, the labor force participation rate of the TPS population from El Salvador, Haiti and Honduras ranges from 81 to 88 percent, well above the rate for the total U.S. population (63 percent) and the foreign-born population (66 percent). The five leading industries in which TPS beneficiaries from these countries work are construction (51,700 workers), restaurants and food services (32,400), landscaping (15,800), child daycare (10,000), and grocery stores (9,200).

Employer Takeaways

If TPS expires for various countries, key employees that have been with an organization for years could be without work authorization and employers could have to fill unanticipated vacancies, said Lynn Shotwell, head of global outreach and operations for the Society for Human Resource Management. "If your organization has known TPS recipients, it is reasonable to do workforce planning around how those positions will be filled if those employees lose work authorization."

Justin Storch, SHRM's director of regulatory affairs and judicial counsel, cautioned HR to be mindful of discriminating against TPS holders. He said HR should not:

Terminate workers in anticipation that they may lose their work authorization.

Ask employees if they are TPS recipients if they have not volunteered that information.

Attempt to determine who is or is not a TPS recipient by looking at I-9s or other employment verification records.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.